Facebook, Inc. v. Guerbuez et al

Filing 17

MOTION to Shorten Time for Default Judgment Hearing filed by Facebook, Inc.. (Hale, Peter) (Filed on 11/12/2008)

Facebook, Inc. v. Guerbuez et al

Doc. 17

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I. NEEL CHATTERJEE (STATE BAR NO. 173985) [e-mail] P. WAYNE HALE (STATE BAR NO. 221492) [e-mail] ORRICK, HERRINGTON & SUTCLIFFE LLP 1000 Marsh Road Menlo Park, CA 94025 Telephone: [phone] Facsimile: 650-614-7401 THOMAS J. GRAY (STATE BAR NO. 191411) [e-mail] ORRICK, HERRINGTON & SUTCLIFFE LLP 4 Park Plaza, Suite 1600 Irvine, CA 92614 Telephone: [phone] Facsimile: 949-567-6710 Attorneys for Plaintiff FACEBOOK, INC. UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION

FACEBOOK, INC., Plaintiff, v. ADAM GUERBUEZ; ATLANTIS BLUE CAPITAL; AND DOES 1-25, Defendants.

Case No. C08 03889 JF HRL FACEBOOK, INC.'S MOTION TO SHORTEN TIME FOR DEFAULT JUDGMENT HEARING Date: Time: Location: Judge:

Courtroom 3, 5th Floor Hon. Jeremy Fogel

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MOTION TO SHORTEN TIME FOR DEFAULT JUDGMENT HEARING CASE NO. C08 03889 JF HRL

Dockets.Justia.com

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Pursuant to Civil Local Rules 6-1, 6-3, and 7-1, Plaintiff Facebook, Inc. ("Facebook") respectfully moves for an order shortening time for hearing on Facebook's Application For Default Judgment Against Adam Guerbuez And Atlantis Blue Capital. This Motion is based upon this Motion, the Memorandum of Points and Authorities, the Declaration of Thomas J. Gray In Support Of Facebook, Inc.'s Motion To Shorten Time For Default Judgment Hearing ("Gray Decl."), the Declaration Of Bernard Cantin In Support Of Facebook, Inc.'s Motion To Shorten Time for Default Judgment Hearing, the pleadings and files, and any other argument or evidence that may be presented on any hearing of this Motion. By this Motion, Facebook respectfully requests that the Court hear Facebook's Application For Default Judgment Against Adam Guerbuez And Atlantis Blue Capital on November 21, 2008 or at its earliest convenience thereafter.

MEMORANDUM OF POINTS AND AUTHORITIES INTRODUCTION Plaintiff Facebook hereby submits this Motion To Shorten Time For Default Judgment Hearing. Facebook seeks to have its Application For Default Judgment Against Adam Guerbuez And Atlantis Blue Capital considered by the Court on an expedited basis to prevent any further prejudice to its ability to collect on the judgment. Defendants have not appeared in this case or contacted Plaintiff Facebook. Accordingly, there exists no reason to treat Facebook's Application for a Default Judgment as a noticed motion and require that 35 days elapse prior to the hearing. II. FACTS Defendant Guerbuez was hand served with the Complaint, Summons and all papers required for this matter (on behalf of himself and Atlantis Blue Capital) on August 14, 2008. See Proof of Service and Declaration Regarding Service (previously filed with this Court as Docket Nos. 5 & 6). Over two months have passed since Guerbuez was served with the Complaint. Yet, neither the Court nor Facebook have heard from Guerbuez. He has not appeared, answered, or responded in any way. See Gray Decl. ¶¶ 2 & 3. Despite Facebook's allegations, Guerbuez has

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chosen to ignore this case. On October 7, 2008, the Clerk of this Court entered the default against Defendants. After the default was entered on three separate occasions Facebook attempted to locate Defendant Guerbuez. Cantin Decl., ¶¶ 3-8. But, to no avail. Defendant Guerbuez is no longer frequenting the same places that he used to and he has not been seen. Id. In light of the Entry of Default, on November 10, 2008 Facebook filed an Application For Default Judgment Against Adam Guerbuez And Atlantis Blue Capital ("Application"). Facebook seeks to have its Application considered and heard by the Court on an expedited basis. III. ARGUMENT A. A Full, Noticed Hearing Schedule Is Not Necessary.

On October 7, 2008, the Clerk of this Court entered a default against Defendants, cutting off Defendants' right to appear in the action or present evidence. Great Am. Ins. Co. v. M.J. Menefee Constr., Inc., 2006 U.S. Dist. LEXIS 64902, *6-*7 (E.D. Cal. 2006) ("The Clerk of Court's entry of default cuts off Defendants' rights to appear in this action, file counterclaims, or to present a defense), citing Clifton v. Tomb, 21 F.2d 893, 897 (4th Cir. 1927); see also Cohen v. Murphy, 2004 U.S. Dist. LEXIS 25284, 2004 WL 2779942, *1 (N.D.Cal. 2004) (`Entry of the defendants' default cuts off their right to appear in the action or to present evidence'); Newhouse v. Probert, 608 F.Supp. 978, 985 (D.C.Mich. 1985) (`When a party is in default the party himself has lost his standing in court, cannot appear in any way, cannot adduce any evidence, and cannot be heard at the final hearing'); In re Uranium Antitrust Litigation, 473 F.Supp. 382, 386 (D.C. Ill. 1979) (stating that `the defaulting defendant loses his standing to defend on the merits). Thus, even if they attempted to do so now, Defendants cannot participate in the case. Therefore, there is no need to put the hearing on Facebook's Application for Default Judgment off for 35 days from the filing of the Application, and delay the resolution of this matter. B. Delay Will Prejudice Facebook's Ability To Collect On Its Judgment.

Defendants were properly served with the Complaint. Therefore, they are well aware of these proceedings and their obligations. Yet they have chosen not to appear. Plaintiff Facebook is concerned that while Defendants have decided not to appear in this case, they have instead
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opted to take measures to conceal their whereabouts and assets to avoid the effects of a judgment against them. Gray Decl., ¶ 4. If so, postponing the hearing for one month will give Defendants more time to hide their assets and will unnecessarily compound the prejudice that Facebook will suffer. Accordingly, Facebook requests that the Court grant its request to expedite the hearing in its Application. IV. CONCLUSION Facebook respectfully requests that the Court set Facebook's Application For Default Judgment Against Adam Guerbuez And Atlantis Blue Capital for hearing on November 21, 2008 or at its earliest convenience thereafter.

Dated: November 12, 2008

I. NEEL CHATTERJEE THOMAS J. GRAY P. WAYNE HALE Orrick, Herrington & Sutcliffe LLP

/s/ Thomas J. Gray Thomas J. Gray Attorneys for Plaintiff FACEBOOK, INC.

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